7 things an attorney recommends brands to consider when using music in content
If you think using music in branded content is confusing, you’re not alone — it can be. We chatted to a legal expert to explain best practices and find the right solutions for you.
Epidemic Sound sat down with marketing attorney Robert Freund to discuss the legal landscape for businesses who create and publish content online.
Quoted in articles by The Wall Street Journal, The New York Times and Forbes, Robert shares his tips on what to consider when using music in marketing content, and what you should look for in a music provider.
He’ll cover:
- Publishing content globally on more platforms increases legal complexity
- Be careful to choose not only royalty-free, but PRO-free, music
- Risks and lawsuits are increasing
- Access to music does not mean permission to use it for commercial purposes
- ‘Good faith’ or business size won’t protect you from litigation
- Find a ‘one-stop shop’ music provider that can sort out the licensing for you
- Epidemic Sound’s license eliminates risk and administrative complexities
1. Publishing content globally on more platforms increases legal complexity
With new content formats and platforms available at their fingertips, brands have more marketing opportunities than ever. But different platforms, from traditional broadcast and live events to streaming and social media, create more complexity for brands using music. Publishing in different markets adds even more layers to this.
“It really is important to pay attention to how the different platforms work and what the various countries’ laws are,” says Robert. “That can get very complicated very quickly, especially if you have a large number of pieces of content and a large number of platforms.”
He explains that traditional rights clearing for commercial music requires time-consuming compliance work: “Brands that are engaging in advertising across different channels, in different media and in different ways, have much more of a burden placed upon them if they need to do traditional rights clearance for all those activities”.
2. Be careful to choose not only royalty-free, but PRO-free, music
Businesses often turn to royalty-free music catalogs for their licensing needs, but this term can be misleading. Robert advises brands to look for a provider that is not just royalty-free, but that also offers public performance rights, which are essential when making content publicly available.
This means that to minimize legal risk and rights administration, the music you choose shouldn’t be affiliated with a Performing Rights Organization, also known as a PRO.
“It’s very important because royalty-free can mean a lot of different things,” Robert explains. "It’s kind of a general term and it’s a mistake to think that just because something claims to be royalty-free, that means I can use this content however I want, wherever I want, in any context.”
He admits that the lack of transparency about what is supposedly royalty-free music is problematic.
“You shouldn’t need to be an IP attorney to understand what rights you’re getting when you’re paying for a service that's supposed to help you,” he says. “You really do need to look at specifically what rights you’re being granted before you can safely use that music in the way that you want to.”
Want to go beyond royalty-free music? Check out our catalog below and soundtrack your world, your way.
3. Risks and lawsuits are increasing
While new platforms and formats offer exciting marketing opportunities, a lack of knowledge about the surrounding legal landscape leads to higher risks and more lawsuits for the brands involved. You’ll often catch these cases on the news, and they show no signs of slowing down.
“In the light of the news and media attention to these sorts of cases, I would expect that rights-holders would be more aggressive in pursuing claims against infringers,” Robert says.
He adds that there’s potentially an even larger number of cases that aren’t resolved publicly. “It’s hard to keep track of exactly how many lawsuits are being filed, especially if they’re resolved before a complaint is filed,” he continues. “A significant amount of disputes and a lot of money is exchanged without anyone ever knowing.”
4. Access to music does not mean permission to use it for commercial purposes
With technology moving fast, new platforms for content distribution often fail to provide clarity on what type of music use is legally compliant for commercial purposes.
“TikTok has a global public library where there’s a huge inventory of popular tracks that people will recognize,” says Robert. “Brands and creators want to use that because that’s what tends to trend on the platform — it can be discovered more easily and resonate with an audience.”
“TikTok also has a separate commercial library that’s available for certain types of accounts, like a business account. I think there’s a significant amount of confusion in the market about differences between those libraries.”
He adds that this is a key consideration for brands working with influencers, as these influencers are using music in commercial contexts when promoting the brand in question.
“Some brands will say ‘Our business account is limited to [TikTok’s] commercial library, but these influencers aren’t. So because they have access to it, it must be okay,’ he says. “But access is not permission. And that misunderstanding is what has led to significantly more potential liability in the copyright context. [...] There are decisions from at least one federal court now saying that the potential liability extends not just to the brand, but also to the endorsers that they hire on their behalf to create content.”
5. ‘Good faith’ or business size won’t protect you from litigation
Sending out demand letters for a strict liability offense like copyright infringement isn’t expensive. So, if you think your business is too small for a rights-holder to invest the time and effort to do it, you should think again.
“It’s not a generally safe position as a brand or any business to say they’re too small to catch the attention of so-and-so,” says Robert. “Many of those clients are surprised that they would be the subject of a lawsuit because they say ‘We don’t have any money’. But you’re gonna have to prove that to the plaintiff, and then you’re still going to have to pay some money and hire counsel to help you through that process.
“Let’s say you’re on ten different platforms, and you’re doing everything correctly from a copyright perspective on nine of them. But on one of them, you have a significant number of pieces of content that are infringing on someone’s copyright. That’s not compliant."
Robert shares his experience: “It’s almost always more cost-effective to do preventive rights clearance work, than having to sort it out after the fact with someone who’s upset.”
6. Find a ‘one-stop shop’ music provider that can sort out the licensing for you
Partnering up with a music provider who can offer a direct license with all rights covered will save you time, money, and headaches. Robert clarifies the benefits.
“It’s a big undertaking [for a business] to try to keep track of which content has which rights with which terms. If you can eliminate the need to do that with a blanket-type license, then you’ve cut down administrative costs to a minimum, not to mention the legal cost if something were to go wrong. It’s a huge advantage. [...] The more you can have a one-stop unified resource, the better.”
7. Epidemic Sound’s PRO-free license eliminates risk and administrative complexities
When we asked Robert about Epidemic Sound’s license, he said, “I’ve recommended Epidemic Sound to a number of clients. You have this blanket, worldwide perpetual licensing model. It looks like it eliminates all the hurdles that my clients typically go through when licensing tracks.”
Despite the complexities of the legal landscape, brands shouldn’t stop exploring new platforms and formats for marketing purposes. They just need to find the one license that removes the risk, so that they can focus on creating.
To learn more about how Epidemic Sound’s licensing model can support your business’s content needs, check out our Enterprise solution.
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